The Court declined to give judicial advice that the trustees of a creditors' trust were justified in commencing a proceeding to specifically enforce a deed of expert determination, where the sole remaining benefit (estimated damages of approximately $451,000) could only be realised through multiple contingent steps — success in the enforcement proceeding, a favourable expert determination, and then either negotiated settlement or a further damages claim. Although the Proposed Enforcement Proceeding itself had sufficient prospects of success, the Court held that the evidence was insufficient to positively satisfy it that the cumulative prospects of a benefit being realised outweighed the risks and costs to the Trust, given the modest quantum of the potential recovery and the absence of evidence enabling assessment of the likelihood of a favourable expert determination. The trustees' costs of the judicial advice application were nonetheless ordered payable from trust assets, the Court accepting they had acted in good faith and reasonably in seeking the advice.
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